DEFAULT SURROGATE CONSENT STATUTES … Power of Attorney for Health Care Act • Spouse or domestic...

DEFAULT SURROGATE CONSENT STATUTES

January 1, 2018

Explanation: The descriptors in the chart are generalizations of statutory language and not quotations, so the statutes must be consulted for precise meaning. The default

surrogacy statute language varies from state to state and the listed descriptors generally hold the following meanings:

• Adult includes any person who is 18 years of age or older, is the parent of the child, or has married;

• Close friend (Adult friend) is one who has maintained regular contact with the patient as to be familiar with the patient’s activities, health, and religious or moral

beliefs.

• Provisions in red are those addressing patients with no available qualified surrogate.

CAUTION: The descriptions and limitations listed in this chart are broad characterizations for comparison purposes and are not precise quotations from legislative

language.

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?

Priority of Surrogates

(in absence of an appointed agent, surrogate, or

guardian with health powers)

Limitations on Types of Decisions

Provides Standard

for Decision-

Making

Disagreement Process

Among Equal

Priority Surrogates

1. ALABAMA

Ala. Code 1975 §§22-8A-1 to -14

(2017).

Specifically, see §22-8A-11

Comprehensive

Health Care Decisions Act

▪ Spouse (unless legally separated/divorcing)

▪ Adult child

▪ Parent ▪ Adult sibling

▪ Nearest adult relative

▪ Att. physician & ethics committee

Patient must be in terminal condition or

permanently unconscious. Certification

requirements.

Yes §22-8A-11(c)

Judicial recourse, §22-

8a-11

2. ALASKA

Alaska Stat. §§13.52.010 to .395 (West 2017), amended 2008. Specifically, see §13.52.030

Comprehensive Health Care Decisions Act

Yes §13.52.010(a) and §13.52.030(c)

▪ Individual orally designated by patient

▪ Spouse ▪ Adult child

▪ Parent

▪ Adult Sibling ▪ Close friend

Patient has to be an adult N/A to withholding or withdrawing life-sustaining procedures UNLESS patient is in “terminal condition” or “permanent unconsciousness.” Certification requirements. Mental health treatment limitations and anatomical gift limitations, see A.S. §13.52.173 and §13.52.193 Exceptional procedures (abortion, sterilization, psychosurgery, and/or removal of organs) limitations under A.S. §13.52.050.

Yes §13.52.030(g)

Majority rule for adult children, parents, or siblings; and if deadlock, then primary physician decides

3. ARIZONA

Ariz. Rev. Stat.

Ann. §§36-3201 to -3231 (West 2017),

amended 2008.

Specifically, see §36-3231

Comprehensive

Health Care

Decisions Act

▪ Spouse (unless legally separated) ▪ Adult child (if multiple, health care provider will

seek a majority opinion from those available)

▪ Parent ▪ Domestic partner, if unmarried

▪ Sibling

▪ Close friend ▪ Att. physician in consult with ethics committee or,

if none, 2nd physician

Mental health treatment limitations

Yes §36-3203(C)

Majority rule for adult children

Judicial recourse for all others, §36-3206

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

4. ARKANSAS

Ark. Code Ann.

§§20-6-101 to -118

(2017) Specifically, see

§20-6-105 as

amended in 2017.

Comprehensive

Health Care

Decisions Act

Yes §20-6-105

A surrogate is designated by the health care provider in the following order of preference conditional on the surrogate being an adult who: (i) has exhibited special care and concern for the principal; (ii) is familiar with the principal’s personal values; (iii) is reasonably available; and (iv) is willing to serve. Consideration may be given to the following order of preference:

▪ An adult designated orally or in writing

▪ Spouse (unless legally separated)

▪ Adult child

▪ Parent

▪ Adult sibling ▪ Adult relative

▪ Close friend

▪ Att. Physician in consult with ethics officer or committee or 2nd physician

Certification requirements for withdrawing or withholding of artificial

nutrition or hydration A.C.A. §20-6-106

Yes, §20-6-106

Judicial recourse, §20-6-115

5. CALIFORNIA

Cal. Probate Code §§4711 – 4727 (West 2017) Specifically, see §4711


Yes §4623 and §4711

Only orally designated surrogate

For orally designated surrogate: Effective “only during the course of treatment or illness or during the stay in the health care institution when the designation is made, or for 60 days, whichever period is shorter.” N/A to civil commitment, electro-convulsive therapy, psychosurgery, sterilization, and abortion.

Yes §4714

N/A since designated surrogate is presumably one person

Cal. Health &

Safety Code §24178 (West

2017)

Specialized provision applicable only to medical research

▪ Spouse ▪ Domestic partner ▪ Adult child ▪ Custodial parent ▪ Adult sibling ▪ Adult grandchild ▪ Adult relative with the closest degree of kinship Note: Different rules apply to emergency room experimental consent

Consent restricted to medical

experiments that relate to the cognitive impairment, lack of capacity, or serious,

or life threatening diseases and

conditions of research participants.

This provision N/A to persons

involuntarily committed or voluntarily committed by a conservator under the

Welfare & Institutions Code

Yes §24178(g)

Consensus needed

Cal. Health &

Safety Code

§1418.8 (West 2017)

Specialized provision applicable only to nursing homes

▪ Next of kin:” ▪ The attending physician and surgeon in accordance with an interdisciplinary team review

Applies when “the attending physician

and surgeon of a resident in a skilled

nursing facility or intermediate care facility prescribes or orders a medical

intervention that requires informed

consent”

Not addressed

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

6. COLORADO

Colo. Rev. Stat.

Ann. §§15-18-101

to 15-18.7-110(West 2017)

Specifically, see

§§15-18.5-101 to -103

Comprehensive Health Care

Decisions Act

The following "interested persons" must decide who

among them shall be surrogate decision-maker: • Spouse

• Parent

• Adult child • Sibling

• Adult Grandchild

• Close friend • Physician designated by attending physician after

obtaining consensus on the designation with ethics

committee. Certain decisions are subject to other criteria and procedures, including ethics committee

concurrence and/or 2nd consulting physician concurrence.

Certification requirements for withholding or withdrawing artificial

nutrition and hydration, §15-18.5-103

Yes, §15-18.5-103(4)(a) Consensus or judicial action in the form of a guardianship

Consensus needed on

selection of the surrogate. If lack of

consensus, judicial

recourse (guardianship) §15-18.5-103

7. CONNECTICUT

Conn. Gen. Stat.

Ann. §§19a-570 to

-580g (West 2017) Specifically, see

§19a-570 and -571

Part of Public

health chapter on “Removal

of Life Support

Systems”

Physician, in consultation with next of kin in the

following priority: (A) The spouse of the patient; (B) an adult son or daughter of the patient; (C) either

parent of the patient; (D) an adult brother or sister of

the patient; and (E) a grandparent of the patient (§19a-570) Oral communications re: withholding life

support by patient made part of medical record per

§19a-570

Limited to the removal or withholding

of life support systems, and patient is in terminal condition or permanently

unconscious

Pregnancy limitation under §19a-574

Yes §19a-571(a)

judicial recourse, §19a-

580c

8. DELAWARE

Del. Code Ann. 16

Del. Code §§2501

to 2518 (2017).

Specifically, see 16

Del. Code §2507

Comprehensive


Yes § 2507

• An individual orally designated as surrogate

• Spouse, unless petition for divorce • Adult child

• Parent

• Adult sibling • Adult grandchild

• Adult niece or nephew

• Adult aunt or uncle • Close friend

NOTE: Surrogate is disqualified if protective order against the individual is filed or in existence.

Adult patient must be in terminal

condition or permanently unconscious, documented in writing with its nature

and cause 2507(b)(7)

Pregnancy limitation, §2503(j)

Yes §2507(b)(8)

If in a health care

institution, refer to “appropriate

committee” for a

recommendation. §2507(b)(9)

Judicial recourse, §2511

9. DISTRICT OF

COLUMBIA

DC Code §§21-2201 to -2213

(2017).


Durable Power

of Attorney for

Health Care

Act

• Spouse or domestic partner

• Adult child

• Parent

• Adult Sibling

• Religious superior if in religious order or a diocesan priest

• Close friend*

• Nearest living relative

* Close friend may not be an individual or facility

provider

Incapacity certified in accordance with

DC Code §21-2204

N/A to abortion, sterilization, or

psycho-surgery, convulsive therapy or behavior modification programs

involving aversive stimuli are excluded

At least 1 witness must be present

whenever surrogate grants, refuses or

withdraws consent on behalf of the patient.

Yes 21-2210(b)

Yes DC Code §21-

2210 (e)-(f), legal

standing to challenge

higher priority standard and rebuttable

presumption

established

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

10. FLORIDA

Fla. Stat Ann.

§§765.101 to .113

(West 2017) Specifically, see

§765.401 and .113

Comprehensive


Yes

§765.101(1)

and §765.101(11)

• Spouse • Adult child or majority of adult children if more

than one

• Parent • Adult Sibling or majority of adult siblings if more

than one• Close adult relative

• Close friend • Licensed clinical social worker selected by

bioethics committee, and if decision is to forgo

life-prolonging procedures, must be reviewed

by bioethics committee.

• For person in persistent vegetative state, guardian

is required.

N/A to abortion, sterilization,

electroshock therapy, psychosurgery, experimental treatment not approved by

IRB, or voluntary admission to a mental

health facility.

Pregnancy limitation, §765.113

Yes §765.401(2) and (3)

Majority rule for adult

children or siblings.

Judicial recourse not

addressed.

11. GEORGIA

Ga. Code Ann.

§§31-9-1 to -7

(West 2017), amended 2010.

Specifically, see §

31-9-2.

Informed

Consent Statute

No

• Spouse; or any parent, adult or minor of minor

child • Person standing in loco parentis for minor child or

ward

• Adult child • Parent

• Adult sibling

• Grandparent

• Adult first degree relation (niece, nephew,

aunt, or uncle)

• Close friend

Can consent to any surgical or medical

treatment procedures not prohibited by law upon physician advice

Not explicitly applicable to refusals of treatment, but nevertheless should be

applicable.

Yes §31-9-2(b)

None provided

Ga. Code Ann. §§31-39-1 to -9 (West 2017) Specifically, see §31-39-2 and -4

DNR Statute

• Spouse

• Guardian (comes after spouse)

• Adult Child

• Parent

• Sibling (31-39-2)

• Physician w/ concurrence of 2nd physician and

ethics committee (31-39-4(e)) unless individual

is a hospice or home health agency patient.

Applies only to consent to DNR orders

Yes §31-39-4(c)

None provided

Ga. Code Ann. §§31-36A-1 to -7 (West 2017) Specifically, see §31-36A- 6

Specialized provision applicable to Temporary Health Care Placement

• Spouse

• Adult Child

• Parent

• Sibling

• Grandparent

• Adult grandchild

• Aunt or Uncle

• Nephew or Niece

Applies only to decisions regarding admission to or discharge from one health care facility or placement, or transfer to another health care facility or placement. Excludes involuntary placement for mental illness (governed by Title 37)

Yes 31-36A-6(b)

None provided

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

12. HAWAII

Hawaii Rev. Stat.

§§327E-1 to -16


§§327E-2 and E-5

Comprehensive


Yes §327E-3 and §327E-5

• An individual orally designated as surrogate

If none, the following "interested persons" must decide who among them shall be surrogate decision-

maker:

• Spouse (unless separated or estranged) • Reciprocal beneficiary

• Adult child

• Parent • Adult Sibling

• Adult Grandchild

• Close friend

None for orally designated surrogate,

but an “interested person” may make a decision to withhold or withdraw

nutrition and hydration only if two

physicians certify that providing it will merely prolong the act of dying and the

patient is highly unlikely to have any

neurological response in the future.

Yes §327E-5(g)

Consensus needed on

the selection of the surrogate. If lack of

consensus, judicial

recourse (guardianship), §327E-

5(d)

13. IDAHO

Idaho Code §§ 39-

4501 to -4515

(West 2017), amended 2012.

Specifically, see §

39-4504

Comprehensive


• Spouse

• Adult child

• Parent

• Person named in a delegation of parental

authority executed pursuant to § 15-5-104

• A relative representing self as appropriate,

responsible person

• Other individual representing self to be

responsible for the person’s health care

• In a medical emergency, attending physician or

dentist may authorize and/or provide such care,

treatment or procedure as he or she deems

appropriate, and all persons, agencies and

institutions thereafter furnishing the same,

including such physician or dentist, may

proceed as if informed, valid consent therefor had been otherwise duly given.

None listed

Indirect in statement

of policy: “Any authentic expression

of a person's wishes

with respect to health care should

be honored.” ICS

39-4509(3)

None provided

14. ILLINOIS

755 ILCS§§ 40/1

to 40/65,Specifically,

see 40/25 (West

2017)

Health Care Surrogate Act

• Spouse • Adult child

• Parent

• Adult Sibling • Adult grandchild

• Close friend

N/A to admission to mental health facility, psychotropic medication or

electo-convulsive therapy (see 5/2-102;

5/3-601.2, amended 1997)

If decision concerns forgoing life-

sustaining treatment, patient must be in terminal condition, permanently

unconscious, or incurable or irreversible condition.

Yes §40/20(b)

Majority rule for children, siblings and

grandchildren.

Judicial recourse

(guardianship), §

40/25(d)

https://a.next.westlaw.com/Browse/Home/StatutesCourtRules/HawaiiStatutesCourtRules?guid=NC106FFF0494711DDB409AB1D1ED27E00&originationContext=documenttoc&transitionType=Default&contextData=(sc.Default)



State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

15. INDIANA

Ind. Code Ann.

§§16-36-1-1 to –14


§16-36-1-5

Health Care

Agency (durable

power) and

Surrogate Consent Act

Any of the following:

• Spouse • Parent

• Adult child

• Adult Sibling • Religious superior if the individual is a member of

a religious order

None listed

Yes

§ 16-36-1-5(d)

A health care provider or any interested person (as defined in IC 30-5-2-6) may petition the probate court in the county where the individual who is the subject of the petition is present for purposes of receiving health care to: (1) make a health care decision or order health care for an individual incapable of consenting; or (2) appoint a representative to act for the individual. §§16-36-1-8(a)

16. IOWA

Iowa Code Ann.

§§144A.1 to .12

(West 2017)

Specifically, see

§144A.7

Living Will Statute

• Spouse

• Adult child • Parent or parents

• Adult sibling

Limited to the withholding or

withdrawal of life-sustaining procedures, and patient is in terminal

condition or comatose

A witness must “be present at the time

of the consultation when that decision is

made.”

Pregnancy limitation, §144A.7(3)

Yes §144A.7(1)


children


addressed

17. KANSAS K.S.A. § 65-4974 (2017)

Specialized

provision,

applicable only to consent to

medical

research

• Spouse, unless legally separated • Adult child • Parent • A relative Note: Authority of guardian or agent with authority to make health care decisions is specifically acknowledged.

Consent is restricted to research protocols that have been approved by an institutional review board. Cannot consent if contrary to the incapacitated person's permission, expressed orally or in writing

No

None provided

18. KENTUCKY

Ky. Rev. Stat.

§§311.621 to .644(Baldwin

2017) Specifically,

see §311.631

Comprehensive

Health Care

Decisions Act

• Spouse

• Adult child

• Parents

• Nearest adult relative

N/A to withholding or withdrawal

artificial nutrition and hydration unless

specified conditions are met

Yes §311.631(3)


children and nearest

relative


addressed

https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000009&cite=INS30-5-2-6&originatingDoc=NBB1AC670054311E5BAE48088B05B4B21&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

19. LOUISIANA

La. Rev. Stat. Ann.

§40:1151 - 1155


§40:1151.4

Living Will

Statute

• Spouse, if not judicially separated

• Adult child • Parents

• Sibling

• Other ascendants or descendants (direct blood line relatives)

• “Adult friend”

Limited to executing a LW

(“Declaration”) for patient in terminal and irreversible condition or comatose

Two witnesses required for the surrogate to make a declaration on

behalf of the patient §40:1151.4(B)

No

Majority rule if more

than one member of any class assumes

authority


addressed

La. Rev. Stat. Ann. §40:1159.4 (2017)

Medical Consent Law

• Spouse, if not judicially separated


• Sibling

• Other ascendants or descendants (direct blood line relatives)

• “Adult friend”

• Any person temporarily standing in loco parentis for a minor

• A person chosen by an interdisciplinary team (for

person w/ developmental disability) • Attending Physician, with confirmation by a 2nd physician who personally examines pt. §40:1159.4

• Abortion • Sterilization • Treatment of mental illness §1159.2 and .3

No

None provided Judicial recourse not addressed

20. MAINE

Me. Rev. Stat. Ann

tit. 18-A, §5-801 to

-817 (West 2017) Specifically, see

§5-805.

Comprehensive


• Spouse, unless legally separated

• Adult in spouse-like relationship • Adult child

• Parent


• Adult niece or nephew

• Adult aunt or uncle • Adult relative familiar with patient's values

• Close friend

If decision pertains to withdrawal or

withholding of life-sustaining treatment , patient must be in terminal condition

or persistent vegetative state under §5-

805(a)

N/A to denial of surgery, procedures, or

other interventions that are deemed medically necessary

Admission to mental health institution

Yes §5-805(f)



authority

Provider may refer

them “to a neutral 3rd

party for assistance in resolving the dispute”

21. MARYLAND

Md. Health-Gen. Code Ann., §§5-

601 to -626 (2017)


Comprehensive

Health Care

Decisions Act

Yes §5-602(d)

• Spouse or Domestic Partner

• Adult child

• Parent • Adult sibling

• Close friend or relative who has maintained

regular contact with the patient

N/A to sterilization or treatment for

mental disorder

Applicable to life-sustaining procedure only if the patient has been certified to

be in a terminal condition, persistent

vegetative state, or end-stage condition

Yes §5-605(c)

If in hospital or nursing

home, refer to ethics

committee

If elsewhere, consensus

needed

22. MASSACHUSETTS

None

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

23. MICHIGAN Mich. Comp. Laws Ann. §§333.5651 to .5661 (West 2017) Specifically, see §333.5653(g) and .5655(b)

Health Care disclosure and consent act.

▪ “a member of the immediate family, the next of

kin, or the guardian” (priority not specified)

Applies when patient has a “reduced life expectancy due to advanced illness”

No

Judicial recourse not addressed

24. MINNESOTA None 25. MISSISSIPPI

Miss. Code Ann. §§41-41-201 to

-303 (West 2017)

Specifically, see §§41-41-203(s), -

211, and -215(9)

Comprehensive

Health Care

Decisions Act

Yes §41-41-211

• Individual orally designated by patient



• Adult sibling

• Close friend • Owner, operator, or employee of residential long-

term care institution (but see limitations in next

column)

Admission to mental health institution.

If surrogate is owner, operator, or employee of residential long-term care

institution, then the authority does not

extend to decisions to withhold or discontinue life support, nutrition,

hydration, or other treatment, care, or

support. §41-41-215(9)

Yes §41-41-211(6)


than one member of

any class assumes authority


26. MISSOURI None

27. MONTANA

Mont. Code Ann.

§§50-5-1301 to -

1308 (enacted 2017)

Separate proxy decision-

making part

within state hospital and

related

facilities code

The following "interested persons" must decide who

among them shall be surrogate decision-maker (§50-5-1303):

• Spouse

• Parent • Adult child

• Sibling

• Adult Grandchild • Close friend

• Another physician or APN designated by the

attending health care provider if conditions are met, including certification of lack of decisional capacity

and medical ethics committee approval of

designation.§50-5-1304

Specifies decision-making criteria and

procedures, including ethics committee concurrence and second consulting

physician concurrence for end-of-life

treatment decisions. §50-5-1305

Partly §50-5-1305

Judicial recourse

§50-5-1305 (petition for temporary

guardian)

Mont. Code Ann. §§50-9-101 to -111 (2017) Specifically, see §50-9-106

Living Will Statute

• Spouse


• Adult sibling • Nearest adult relative

Limited to withholding or withdrawal of

life-sustaining treatment , and patient is in terminal condition

Pregnancy limitation, §50-9-106(7)

Yes §50-9-106(4)

Majority rule for adult children and siblings Judicial recourse not addressed

28. NEBRASKA None

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

29. NEVADA

Nev. Rev. Stat.

§§449.535 to -

.690(2017) Specifically, see

§449.626

See also: POLST Statute

Nev. Rev. Stat.

§449.6942

Living Will

Statute and

POLST Statute

§449.626:


• Parent

• Adult sibling • Nearest adult relative

• Close friend (but in POLST statute only)

§449.6942

Limited to withholding or withdrawal of

life-sustaining treatment, and patient is in terminal condition

Pregnancy limitation, §449.626(6)

Yes §§449.626(4)


children and sibling


addressed

30. NEW

HAMPSHIRE 2014 N.H. Laws Ch. 239 (H.B. 1434), eff. 1/1/15

Amendment to the advance directive statute, N.H. Rev. Stat. Ann. § 137-J:1 to -J:37

• Spouse or civil union partner


• Adult sibling

• Adult grandchild • Grandparent

• Aunt/Uncle or niece/nephew

• Close friend • Financial agent under POA or Conservator

• Guardian of the estate

N/A to withholding or withdrawal artificial nutrition and hydration unless patient is “near death or permanently unconscious.” § 137-J:10 Authority effective for only 90 days.

Yes, § 137-J:6

“shall make health

care decisions in accordance with the

agent's or surrogate's

knowledge of the principal's wishes

and religious or

moral beliefs, as stated orally or

otherwise

communicated by

the principal, or, if

the principal's

wishes are unknown, in

accordance with the

agent's or surrogate's assessment of the

principal's best

interests and in accordance with

accepted medical

practice.”

Majority rule. § 137-J:36

31. NEW JERSEY NJ St. § 26:14-1 – 5 (West 2017) Specifically, see §25:14-5

Specialized provision applicable only to medical research

• Spouse or civil union partner

• Adult child

• Custodial parent • Adult sibling

Adult grandchild (§26-14-5) • Nearest adult relative

Limited to medical research approved and monitored by an institutional review board, plus certain benefit/risk criteria must be met.

Yes NJ St.§ 26:14-5(d) plus procedural requirements for informed consent

Consensus needed Judicial recourse not addressed

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

32. NEW MEXICO

N.M. Stat. Ann.

1978 §§24-7A-1 to

-18 (West 2017) Specifically, see

§24-7A-5

Comprehensive


Yes §24-7A-5

• Spouse

• Individual in long-term spouse-like relationship • Adult child

• Parent

• Adult sibling • Grandparent

• Close friend

Admission to mental health facility

§24-7A-13(E)

Yes §24-7A-5(F)



authority §24-7A-5

Judicial recourse. §24-

7A-14

33. NEW YORK

N.Y. Family Health Care

Decisions Act §§2994-A to -U

(McKinney 2017)

Specifically, see § 2994- D

Specialized

Surrogate

Consent Statute (applicable to

health care

provided in a

hospital and

nursing

homes)

[

• Spouse or Domestic Partner

• Adult child


• Close friend • Attending Physician for routine medical treatment

or, for major medical treatment, the attending

physician must make a recommendation to the hospital for the treatment and have at least one other

physician designated by the hospital to

independently concur

Even if the patient lacks capacity, a

patient’s objection to the surrogate’s

decision will prevail unless a court of competent jurisdiction determines the

patient is incompetent for all purposes, not just for health care decisions.

Decisions to withhold or withdraw life-sustaining treatment for a patient shall

be authorized only if certain conditions

are met and the attending physician or hospital concurs with the decision.

Yes 2994-d(4) and §2994-d(5)

Judicial recourse

(guardianship), § 2994-

R

N.Y. Pub. Health

Law §§2960 to

2979

(McKinney 2017)

Specifically, see

§§2965 & 2966

Specialized Surrogate Consent Statute (applicable only to DNR orders)

• Spouse or domestic partner

• Adult child

• Parent

• Adult sibling

• Close friend • Physician, with concurrence by a qualified second physician who personally examines patient that resuscitation is medically futile.

Limited to consent to a DNR order, and patient is in terminal condition, or permanently unconscious, or where resuscitation is futile or extraordinarily burdensome

Yes §2965(3)(a)

Refer to dispute mediation system Judicial recourse, Specifically, see §2973

34. NORTH

CAROLINA

N.C. Gen. Stat. §90-320 to -328

(2017)


Living Will Statute

• Spouse

• Parents

• Adult Child • Siblings

• Close friend

• Att. physician

Limited to the withholding or withdrawal of life-prolonging measures

where the patient is terminal or

permanently unconscious.

No

Majority rule for parents, adult children

& siblings


addressed

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

35. NORTH

DAKOTA

N.D. Cent. Code

§23-12-01 to -19 (2017)

Specifically, see

§23-12-13

Informed

Consent Statute

• Spouse who has maintained significant contacts

with incapacitated person • Adult children who have maintained significant

contacts with incapacitated person

• Parents, including stepparent who has maintained significant contacts with incapacitated person

• Adult siblings who have maintained significant

contacts with incapacitated person • Grandparents who have maintained significant

contacts with incapacitated person

• Adult grandchildren who have maintained significant contacts with incapacitated person

• Close adult relative or friend who have maintained significant contacts with incapacitated person

Not explicitly applicable to refusals of

treatment, but nevertheless should be applicable. A determination of

incapacity, over the patient’s objections,

can be determined in a court hearing pursuant to chapter 30.1-28.

N/A to sterilization, abortion,

psychosurgery, and admission to a state

mental facility for > 45 days

Yes §23-12-13(3)

None provided

36. OHIO

Ohio Rev. Code

Ann. §2133.01 to

.16 (West 2017) Specifically, see

§2133.08

Living Will

Statute

• Spouse


• Adult sibling

• Nearest adult relative

Limited to consent for withdrawal or

withholding of life-sustaining treatment, and patient has been in terminal

condition or permanently unconscious

for at least 12 months.

Nutrition and hydration may be

withheld only upon the issuance of an order of the probate court, §2133.09

Pregnancy limitation, §2133.08(G)

Yes §2133.08(D)(3)


children and siblings


addressed

37. OKLAHOMA

Okla. Stat. Ann. tit.

63 §3101 to 3102.3A (West

2017) Specifically,

see §3102A

Specialized provision

applicable only

to medical

research


• Parent

• Adult sibling

• Relative by blood or marriage

Limited to experimental treatment, test or drug approved by a local institutional

review board.

Yes §3101.16


addressed

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

38. OREGON

Or. Rev. Stat.

§127.505 to .660 (2017)

Specifically, see

§127.635, §127.505(13) and

127.535(4)

Comprehensive

Health Care

Decisions Act

• Spouse

• Adult designated by others on this list, without objection by anyone on list

• Adult child

• Parent • Sibling

• Adult relative or close friend

• Att. Physician, includes naturopathic physicians,

per 2017 Oregon laws Ch. 135 (H.B. 2393)

Limited to terminal condition or

permanently unconscious, or advanced progressive illness, or treatment that

will cause permanent and severe pain.

Before withdrawal or withholding,

consultation is required with concerned family & close friends, and after notice

to case manager, if there is one. Case

manager must provide any information

the case manager has that is related to

the principal’s values, beliefs and

preferences with respect to the decsions.

Yes §127.535(4) & 127.535(6)


children and siblings


addressed

39. PENNSYLVANIA Pa. Stat. Ann. tit. 20, §§5451 to 5461 (West 2017) Specifically, see §5456 and §5461


• Spouse

• Adult designated by others on this list, without

objection by anyone on list • Adult child

• Parent

• Adult sibling

• Adult grandchild • Close friend Note: Individual may provide for a different order of priority. by signed writing.

Pregnancy limitation, Pa. Stat. Ann. tit. 20, §5429 Surrogate health care decision maker may not execute an advance health care directive or name a health care agent on behalf of an incompetent individual.

Yes

Tit. 20, §§5456 &

5461

Majority rule if more than one member of any class assumes authority Judicial recourse not addressed

40. RHODE

ISLAND None

41. SOUTH

CAROLINA

S.C. Code Ann.

§44-66-10 to -80

(2017) Specifically, see §

44-66-30

Separate

Surrogate

Consent Act

• Person given priority to make health-care

decisions for the patient by another statute

• Spouse, unless separated or divorced • Parent or adult child

• Adult sibling, grandparent, or adult grandchild

• Other close relative • Person given authority to make health-care

decisions for the patient by another statutory

provision • If none of the above, health care may be provided

w/o consent “if necessary for the relief of suffering

or restoration of bodily function or to preserve the

life, health, or bodily integrity of the patient.” §44-66-50

N/A if patient's inability to consent is

temporary and delay of treatment will

not result in significant detriment to the patient's health

Yes §44-66-30(F)

Consensus needed

Judicial recourse. Specifically, see §44-

66-30(D)

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

42. SOUTH

DAKOTA

S.D. Codified

Laws §34-12C-1 to -8 (2017)

Specifically, see

§34-12C-3

Separate

Surrogate Consent Act

• Spouse


• Adult sibling

• Grandparent or adult grandchild • Aunt or uncle or adult niece or nephew

• Adult cousin

• Close friend (An authorized surrogate may delegate authority to

another person in same or succeeding class)

None listed

Yes §34-12C-3

Consensus needed


43. TENNESSEE Tenn. Code Ann §68-11-1801 to -1815 (2017) Specifically, see §68-11-1806

Comprehensive Health Care Decisions Act [NOTE: New law for minors enacted 2014]

Yes §68-11-1806.

Supervising health care provider selects from the following order of preference under criteria provided:

• Individual designated by patient


• Parent

• Adult sibling • Other adult relative • Close friend • Primary Physician, in consultation with ethics committee or independent 2nd physician Disqualified surrogates: • Indiv. Provider • Facility Provider Person who is the subject of a protective order that directs the person to avoid contact with the patient

Any matter governed by the mental health code. Except for individual designated by the patient, other surrogates cannot make decision to w/h or w/d artificial nutrition & hydration without certification by 2 physicians of medical prerequisites.

Yes §68-11-1806(d)

Provider selects surrogate using criteria provided under §68-11-1806(c)(4)

44. TEXAS

Tex. [Health &

Safety] Code Ann.

§166.031 to .053 (Vernon 2017)

Specifically, see

§166.039

Comprehensive


Physician and:

• Spouse

• Adult children • Parents

• Nearest relative

• Att. Physician, with concurrence of independent 2nd physician or physician member of ethics

committee


Yes §166.039(c)

Judicial recourse

(guardianship), §166.039(g)

Tex. [Health &

Safety] Code Ann.

§166.081 to .101 (Vernon 2017)

Specifically , see

§166.088(b)

Specialized

provision

(applicable to

DNR orders)

(Same as above. Incorporates the terms of

§166.039)


Yes §166.088(c)

Judicial recourse

(guardianship),

§166.039(g)

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

Tex. [Health & Safety] Code Ann. §313.001 to .008 (Vernon 2017) Specifically, see 313.004

Specialized provision applicable to patients in home & community support services or in a hospital or nursing home

• Spouse • Adult child (who has the waiver and consent of all

other qualified adult children of the patient to act as

the sole decision-maker) • Majority of the patient's reasonably available adult

children

• Parents • the individual clearly identified to act for the

patient by the patient before the patient became

incapacitated

• Nearest living relative

• Member of the clergy

• Voluntary inpatient mental health services;

• Electro-convulsive treatment; or

• Appointment of another surrogate decision-maker.

Yes §313.004(c)

Consensus, in the case of adult children surrogates Judicial recourse, §313.004(b)

45. UTAH

Utah Code Ann.

§75-2a-101 to -125 (2017)

Specifically, see

§75-2a-108

Comprehensive

Health Care

Decisions Act

Yes

§75-2a-103 & §75-2a-107

• Spouse

• Adult Child



• Grandparent • Close friend

Surrogate may not admit the adult to a licensed health care facility for long-

term custodial placement other than for

assessment, rehabilitative, or respite care over the objection of the adult

Pregnancy limitation, §75-2a-123

Yes §75-2a-110(1)

Majority rule inside the highest available

priority level.


2a-120

46. VERMONT Vt. Stat. Ann. tit. 18, § 9731 (2017

WEST) Effective. Jan. 1, 2018.

DNR/POLST provision

Yes §9731(c)(1)

The following "interested persons" must decide who among them shall be designated as surrogate decision-maker: • Spouse • Adult Chile • Parent • Sibling • Grandchild • Clergy person • Close friend tit. 18, §9701(18)

Limited to making decisions about DNR orders or Clinician Orders for Life-Sustaining Treatment

Yes Tit. 18, §9731(e) For nursing home residents: tit. 33, §7306(c)

Consensus needed on selection of the surrogate or on the specific health decision. If lack of consensus, judicial recourse (guardianship) tit. 18, §9731(d)(2)

47. VIRGINIA

Va. Code §54.1-

2981 to -2993 (West 2017)

Specifically, see

§54.1-2986 &

-2986.1


Decisions Act

Yes §54.1-2983


• Parents

• Adult sibling • Other relative in the descending order of blood

relationship

• Close friend

N/A to non-therapeutic sterilization, abortion, psychosurgery, or admission

to a mental retardation facility or

psychiatric hospital

Close friend cannot consent to the

withholding or withdrawal of life-

prolonging measures

Yes §54.1-2986.1(B)

Majority rule

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

48. WASHINGTON

Wash. Rev. Code

Ann. §7.70.010 to

.160 (West 2017) Specifically, see

§7.70.065

Informed

Consent Statute

• Spouse or registered domestic partner

• Adult children • Parents

• Adult siblings

Not explicitly applicable to refusals of

treatment, but nevertheless should be applicable.

Yes §7.70.065(1)(b) and (c)

Consensus needed

49. WEST

VIRGINIA

W. VA. Code Ann. §16-30-1 to -25


§16-30-8


Decisions Act

Att. Physician or Advanced Nurse Practitioner selects from the following order of preference under criteria provided:

• Spouse

• Adult child

• Parents • Adult sibling


• Close friend • Any other person or entity according to DHHR

rules

Ineligible surrogates:

▪ Indiv. Provider*

▪ Facility Provider* * Exception for relatives who are employees of

None listed

Yes §16-30-8(b)(1)(A), -9 and -5(d)

Not applicable since provider selects

surrogate.

50. WISCONSIN Wisc. Stat. Ann. §50.06 (West 2007)

Specialized Surrogate Consent Statute applicable to certain facility admissions

• Spouse or domestic partner §50.06.3(a)


• Adult sibling • Grandparent


• Close friend

Limited to consent to admission to nursing home and certain community-based residential facilities for up to 60 days, with 30 day extension possible, and only if:

1. The incapacitated person is not diagnosed as developmentally disabled or having a mental illness at time of admission

2. Petitions for guardianship and protective placement are filed prior to admission

No

Consensus needed

51.WYOMING

Wyo. Stat.

§35-22-401 to -416(2017)

Specifically, see

§35-22-406


Decisions Act

Yes. §35-22-406(b)

• Individual designated by personally informing the supervising health care provider



• Grandparent


• Close friend

None listed

Yes §35-22-406(f)

Majority rule if more than one member of

any class assumes

authority


22-415

State

& Citation

General Type

of Statute

Can Patient

orally name a

Surrogate?





Provides Standard

for Decision-

Making


Among Equal

Priority Surrogates

UNIFORM HEALTH-

CARE DECISIONS

ACT (1994)


Decisions Act

• Individual orally

designated by patient • Spouse

• Adult child

• Parent • Sibling

• Close friend

None listed

Yes §5(f)



authority

CAUTION: The descriptions and limitations listed in this chart are broad characterizations for comparison purposes and are not precise quotations from legislative language.

© ABA Commission on Law and Aging, 2018.

The ABA acknowledges Thomson Reuters Westlaw for providing access to on-line legal research.

DEFAULT SURROGATE CONSENT STATUTES … Power of Attorney for Health Care Act • Spouse or domestic...

Documents

Transcript of DEFAULT SURROGATE CONSENT STATUTES … Power of Attorney for Health Care Act • Spouse or domestic...